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		Search, Seizure And The Expectation Of Privacy By Regina Rousso Wilmes Director of University Housing Temple University "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (The Fourth Amendment to the United States Constitution) One of the fundamental issues of the administration of residence life systems is balancing an individual's rights with the rights of the community. This delicate balance is illustrated well by examining the topic of search and seizure activities in a U.S. residence hall community. During the past three decades, U.S. courts have generally affirmed that individual students' living units in a residence hall are to be considered their house or home, and therefore, they have a reasonable expectation of privacy and are protected by the Fourth Amendment in that "home." Students do not lose their constitutional rights when they enter an educational institution. However, courts have also recognized that there are certain conditions under which search and seizure are permissible in a residence hall setting. Educational Mission - If the purpose of a search is to "further the educational mission," then that search may be considered legal. Examples of actions that would further the educational mission are those that would maintain order and discipline in the residential community and free students from threats to their health or safety. In State v. Hunter, 831 P. 2nd 1033, (1992), the institution conducted a search in response to vandalism and damage that appeared to have been caused by explosives. During the search, stolen university property was discovered in Hunter's room and it was seized. The court stated that an institution takes on responsibility for maintaining a "clean, safe, well-disciplined environment in its dormitories," and that the search was reasonable in the furtherance of that goal. Contractual Relationship - If a student signs a housing agreement that states that searches are permitted under certain circumstances, then the court may interpret that as a waiver of Fourth Amendment rights. However, the language in the housing agreement must be "reasonably construed" in order to be upheld. In Devers v. Southern University, 712 So. 2nd 199 (1998), the institution's housing contract indicated that college officials could conduct searches with police officers. It stated "The University reserves all rights in connection with…inspection of rooms with police…" The university conducted a "sweep" search of all rooms in Devers' residence hall and found marijuana in his room. The court found that the statement in Southern's housing contract had no rationale that supported furthering the educational mission. The sweep was done as a random check, rather than in response to suspicion of a specific violation. The purpose of the sweep was to discover criminal violations such as drugs or weapons, rather than violations of institutional regulations. The clause in the contract was deemed to be unreasonable and the search was not justified. Safety, Health and Emergencies - Searches conducted to ensure the safety and health of students are considered permissible. In People v. Lanthier, 97 Cal. Reporter 297, (1971), a college official entered a room from which a strong and foul odor was emanating. This search for the source of the odor was deemed to be legal because the official was acting to ensure the safety and health of the members of the residential community. However, it is recommended that if an institution intends to conduct searches for violations of health and/or safety regulations, the best (and most legal) approach is to plan and announce when, where and why these inspections will take place. Police versus College Administrators - There are different standards of behavior for police officers and for college administrators. Police officers must have a warrant to conduct a search, unless the resident has given permission to search their living unit. Police may conduct a legal search as part of a criminal investigation. If a police officer sees something illegal, such as drugs, in "plain view" then that material may be seized. Police officers may not conduct searches that further the educational mission, as this role is reserved for college administrators. The key difference is that college officials are permitted to conduct routine administrative searches or inspections that may result in disciplinary proceedings against a student. Searches by police may result in criminal prosecution, and thus, police are held to a higher standard of behavior because the potential consequences are considered more severe. In Piazzola v. Watkins, 442 F. 2nd 284 (1971), the institution had a clause in the housing agreement that permitted rooms to be searched if the administration deemed it necessary. In this particular case, college officials and local police conducted a search for marijuana. The appellate court ruled that because the primary purpose of this search was criminal prosecution, rather than to uphold the educational mission of the university, it was not constitutional. Permission - The least complicated way (in a legal sense) of gaining access to a student's living unit is to ask and receive the student's permission. It is important to make sure that the individual who invites you into the room and gives permission to search is the actual occupant of that room, and therefore, has the right to authorize a search of that area. Public versus Private Institutions - Administrators at public institutions are generally held to Fourth Amendment standards, whereas their counterparts at private institutions may have more latitude. However, administrators at private institutions must be aware that if they are perceived as having conducted a search while acting as agents of, or with the awareness of, local police then that search may not be considered legal. In Duarte v. Commonwealth, 407 S.E. 2nd 41 (1991), a search for violations of the student handbook conducted by administrators at a private institution was deemed legal because the administrators were not "acting at the government's direction," but rather at their own initiative. In addition, the intent of the administrators was not to help in a governmental investigation. The information above has been used to formulate the following guidelines for housing and residence life professionals regarding searches in residential living units. Searches by housing administrators should only be done for the purpose of "furthering the educational mission." Law enforcement officers and/or government agents should do searches done for the purpose of furthering a criminal investigation after they have obtained the permission of the occupant and/or a proper warrant. Make sure that the person giving permission to search is actually an occupant of that living unit. Any clause in a housing agreement that gives administrators the authority to search students' living units should have a rationale that supports the educational mission and should be reasonable. Seek legal counsel to help determine whether the language of the housing agreement is "reasonably construed." Routine searches (inspections) by administrators to determine compliance with housing regulations and safety/health standards are generally permissible. Such inspections should be planned and residents should be notified in advance. Any official, whether it be a police officer or a college administrator should identify themselves before entering a student's living unit. Searches of individual units that are conducted in response to report of an actual violation are more likely to be considered reasonable. Random searches of individual rooms that are not the result of an observed or reported violation are not likely to be supported. Although administrators at private institutions may have more freedom from Fourth Amendment standards, the guidelines above should be utilized to help prevent searches that are unreasonable. Although a constitutional challenge may not be a concern, officials at private institutions could be accused of "unprivileged trespass' and subject to civil action. About the Author Regina Rousso Wilmes has held a variety of positions in both Housing and Student Affairs at Emerson College, the University of Cincinnati, Semester at Sea and Temple University. During the past 18 years, Regina has been active in ACPA, ACUHO-I, GLACUHO, MACUHO and BACHA. She has a special interest in legal issues in student affairs. Regina is currently the Director of University Housing at Temple University.